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Ethics Pop Quiz

Happened upon on the interwebs: a man asking for guidance via social media:

“…you should all know by now that I am not legally trained at all and entirely self taught in the family courts.

I have been approached by a very big local law firm and asked if I would consider taking on their family law caseload as a paralegal. officially, I guess I am already a paralegal but i dont have automatic rights of audience so i would need to get a qualification. they also are very attracted to the fact that I am ready to do my mediation training and consider this to be my natural progression in the practice.

my issue is this… if i take the position, I will then have to take the cases they give me which is inevitably going to lead to me working for skanks. the way i figure it, i can work on them from the inside if i had to. i hate the notion of a bloke suffering at my hand and it would definately cause me some problems. on the other hand, if i dont take the position, [xxxx] solicitors will employ someone that has no scruples at all about caning the living fuck out of some poor bloke. I was given the first 2 cases from their load today and asked if i wanted to take a look at them.

obviously, once i agree to take the cases I cannot excuse myself from a case unless there is a conflict of interest or I will be barred from working in the courts and if i dont like the cases i am given i have no choice but to proceed….

your thoughts please guys. please try and have a serious attempt at answering this issue rather than taking the piss… lol it means a lot to me that i make the right decision, kids happiness depends on it.”

This is the future people.

DISCUSS.

[By the way I don’t know what he decided to do – or anything about him. And I’m not offering any comment myself, I just thought it highlighted some interesting questions / issues about the legal profession and the reliance upon paralegals for the provision of legal services.]

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49 thoughts on “Ethics Pop Quiz”

Factory farm law in all but name, if you ask me.
No doubt being charged out at 200 quid an hour plus VAT for being suitably overseen by a senior.
And you wonder why family law litigants lack faith in solicitors. Here’s one reason why.

Michelle is a barrister(see her site on internet) who fled to Israel when the ss threatened her children.I helped her deal with Hague Convention issues etc since she had no experience of these during her 10 year stint in the routine of the family courts.
She wrote the previous comment as a letter to me to warn all those like the “man asking for guidance” who inspired this stream,exactly what sort of jungle he might be entering into if he does become a para legal etc.
“Stay out of the family courts mate” would be my advice and also that of Michelle Freedman !

OK forced adoption, since what you posted was the contents of a private letter I’ve edited it out. It may well be that Michelle is happy for it to be published, and if so she can post herself. I don’t know which website you are referring to nor do I have time to search it out.

Certainly, it would be contrary to the Code for a barrister to put his personal views above his client’s interests, I assume a similar rule applies to solicitors, and the ILEX code appears to provide for a similar rule.

Presumably he can’t do advocacy in the family courts without qualifying as an ILEX—whereupon he would be bound under the code to act in his clients’ best interests?

That said, it sounds like this chap is a die-hard fathers’ rights character. Maybe once he sees how solicitors robustly advise the ‘skanks’ he might change his mind.

A paralegal (i.e. not an ILEX or sol or barrister) could request and be granted rights of audience by the judge, but only on a case by case and hearing by hearing basis – there should not be a standing approval (although I have heard tell of that happening). But that doesn’t really cater for any advice which may be proffered or work done on the case outside of advocacy at court which is pretty much unregulated, save insofar as the lawyers running the firm would be responsible for what goes on in their firm.

Paul, Here’s an idea: don’t use words when you don’t know what they mean. skank definition here.
It’s a pretty offensive word I think you’ll agree, and whilst your comment is not sufficiently cogent for me to really be clear quite who you are calling a “skank” I won’t tolerate it on this site. I don’t think it’s appropriate for anyone to call anyone else a skank, whether or not they are a father’s rights activist, but particularly when it appears that the term is being deployed to generalise about parents based upon gender based presumptions.
I think its worth remembering that we don’t know that this person was ever taken on, nor that his attitudes were known to those who were considering employing him, nor do we know how his attitudes may have changed upon seeing a different perspective. I don’t really understand your point about unleashing – solicitors generally have a mixed client base of dads and mums. They need staff who are able and willing to properly conduct work on behalf of each of their clients, without allowing their personal convictions to get in the way of the efforts they make.

A word like that can mean whatever you want it to mean. I’m not interested. It does not form part of my vocabulary. And I do not hear others use it either. Moreover, I have no desire to learn about it so lecturing or directing me to internet definitions is pointless.

We are all being presumptuous in assuming, as Jim did, that this is a male talking anyway.

Oh Paul, come ON. You DID use the word. It was inappropriate.
I can tell you it was a male talking, as I saw the original post. I think its disingenuous to suggest it is not self evident from the post in any event.

And like I said, that word means nothing to me. To you, it’s very bad and if my use of a word, entirely unknown, meaningless to me and probably most people too, offended you, then sorry, no offence intended.

I’m not sure what concerns me more – a ‘paralegal’ with no legal training whatsoever (do we assume the original poster does not have a law degree, or LPC?) or the fact that he wants to put his own interests and beliefs before the best interests of each client.

Paul,
With all due respect, I think it is perfectly clear from the context that this post comes from something like the F4J forum, Facebook page or similar.

I’m curious as to what you mean by “particularly when you sense the drift isn’t quite going your way.” I take it this is the usual bullshit about “oh, anyone legally qualified is oppose to the ‘reforms’ because they will lose money”?

Newsflash: when you change the law you get more litigation and more court hearings. You get trips to the appellate courts—usually more than one—and a few headline reported cases. If/when the legislative presumption comes in, there’s likely to be a good few years of a lot more work as people don’t quite know what it means and/or decide to try their luck anyway.

@ Rachel – a paralegal isn’t required to have any formal legal qualifications. A few paralegals will have a law degree, many will have a lot of practical experience of working hands-on in a law firm, and others will have other recognised legal qualifications and good number of years of LPE. I’m a qualified paraelgal in both E/W and Scotland, specialising in family law, and have 8 years LPE behind me.

Most solicitors’ firms employ paralegals. These paralegals do a wide variety of work: document preparation; research; filing papers at court or Companies House etc., corresponding with clients, interviewing witnesses, preparing court bundles and more. Around 44% of fee earners in law firms in England are paralegals.

I know the author of the text in Lucy’s blog, and I also know what he decided to do – but that is for him to say, not me. I thought that the post had only been posted in private/closed groups (around 2 or 3), so I’m surprised that it is in the public domain.

There is nothing wrong with having principles, and applying those principles to the work you do; however, when you are working for someone else, you aren’t in a position to pick and choose your clients; probably the reason why I work for myself.

Thanks for your post Ruth. You are right that the term “paralegal” covers a vast range of skills, qualification and experience – and many of them are excellent – but of course in itself the term paralegal does not guarantee any of those qualities. And of course you are correct when you say they are widely relied upon and an established part of the legal services industry.
Thank you for not identifying the author of the original post – I do not intend him to be identified. It was published on a publicly visible page – I don’t spend my time rooting around closed groups for stuff to post – I just happened to come across this on facebook looking for something else. But in any event this is a discussion point not a witchhunt.

Paul,
Not at all, indeed you may have noticed that I began the analysis of the professional obligations of this character. It troubles me greatly that someone wholly without professional obligation may be running around advising people and appearing in court.

That said, there’s nothing unscrupulous about this. He would not be allowed to mislead court or client by holding out that he is qualified. If people want this service that’s their decision—I would imagine there is a strong cost-incentive.

Lucy,
I’m not sure, but certainly it sounds as if this firm wants this bloke with the intent he would appear in court. If that were so, it would certainly make sense that the solicitors would want him to qualify as an ILEX so he had a general right of audience as opposed to having to apply every time. It would appear that, much as the Code applies to bar students, the ILEX equivalent applies as soon as you set foot on that path. Accordingly, won’t he pick up some professional obligations that would apply when advising clients once he begins training?

In any event, don’t solicitors have obligations in respect of their employees as well? If he made a habit of applying undue pressure to clients there must be a reasonable chance that he would get found out by the supervising solicitor. Or is that taking a rose-tinted view?

Jim, You may well be right that many paralegals in this scenario would be encouraged or supported to qualify as ILEX – although I’m not sure that would happen in every firm. It would give some protection if it did happen though. But your last paragraph is the important one – the buck stops with the solicitor. The question is how alive are they / can they be to what is done in the name of their firm (I’m guessing they would not have been aware of the contents of the original post – what would they have made of it?)
Lucy

Funny post, Jim. You sound as though you’re on your soap box but it’s giving way a bit.

I read the post as revealing the reality of greedy, venal solicitors and their unscrupulous ways. Something presumably, you’d prefer not to talk about. Much easier to spout forth on “die-hard fathers’ rights” characters or parley the post into some family law reform nonsense, I suppose.

Thanks Ruth, I’m familiar with the concept of a paralegal having been one myself before qualifying as a solicitor.

I realise that part of my comment is actually missed out. I meant, it concerned me that a paralegal, possibly without any legal qualifications whatsoever, would be running a caseload with what appears to be no other support. That’s a lot of pressure and easy to make mistakes.

Jim, you don’t want anyone’s service, at any cost, if he is effectively acting as a fifth columnist. What ought to trouble you is the issue of firms employing people like this. It doesn’t trouble me. I am one of your die-hards who hopes the system eventually implodes. This is all grist to the mill.

The ILEX courses are very expensive (about £5k), and unless you are fortunate enough to work for an employer who is prepared to meet those costs, and support you while you are taking the course, it can be difficult to afford such high course costs if you are self-funded. In any case, when someone passes the ILEX course and qualifies as a Legal Executive, they are no longer a paralegal but a Legal Ex (although they can, of course, continue to work as a paralegal).

In April 2012, Keir Starmer praised the work of paralegals in the criminal legal profession– “Many of you [who] work in paralegal roles, some as caseworkers, and a large number of you are also involved with witness care. All of this work is absolutely fundamental to the administration of criminal justice in this country. The courts cannot deal effectively with crime unless the cases brought before them are properly and efficiently processed, and the witnesses are there to support the prosecution’s case. You are the professionals who provide these key services to our prosecutors, thereby playing an essential part in the administration of justice. “

Paralegals provide an equally important role in family law, and without them, no law firm/office could function effectively or properly.

If a paralegal is a member of a professional body such as the Institute of Paralegals, he/she would be expected to comply with the IoP’s Code of Conduct and Competency Standards (which are available on the IoP website) and ensure – and prove – that they have completed the required CPD. On the issue of paralegals being unregulated, most professions in the UK are unregulated (there are only 102 regulated professions in the UK currently), and individual employers will determine what qualifications they deem to be necessary for the adequate performance of an individual’s job duties. In any case, being regulated doesn’t necessarily mean that there will be a high level of competency or good practice through-out any regulated profession. Any paralegal working under a solicitor will be subject to being regulated by the SRA, any complaint about a self-employed paralegal will fall under the remit of Trading Standards, or the professional body of which they are a member of.

I’m used to being dismissed by those who have no understanding of the work I do as a paralegal, my abilities and skills; or those other legal professionals who think they are above me – it’s all water off a duck’s back to me; it’s a bit like a Doctor dismissing a nurse’s ability to administer medical care on the basis that he/she is “only” a nurse…

I think Ken in NZ’s suggestion to the author of the original text in the blog becoming a self-employed “contractor” is a reasonable suggestion; however I would urge anyone considering this route to read all the information on the IoP website and undertake a properly accredited qualification prior to setting up as self-employed and gain as much LPE as you can before setting up; there are many pitfalls to be aware of and hoops to jump through – it’s not an easy option, but it’s worth doing, and doing properly.

no dismissing of a paralegal from me, having been one I know how essential they are. I was responding to Lucy’s initial question/discussion point regarding the ethics of the matter, which raised 2 concerns for me:

1. assuming the paralegal is the kind which doesn’t have any qualifications or is very inexperienced then the firm is putting a lot of pressure on the paralegal in asking them to run a department.

2. the specific paralegal seems to be suggesting they have their own agenda to push – therefore potentially not acting in the best interest of the client.

As Lucy says, it *is* the solicitor or firm’s responsibility, but that doesn’t always happen. the initial post seems to be suggesting that he will have free reign of managing his case load and that concerned me for the reasons I set out above.

Ruth,
I don’t think anyone is dismissing paralegals. But I think there are issues of accountability, both in terms of appearing in court and general duty to client, where it’s advantageous to have direct personal accountability in the public interest.

For example, if the original poster actually were to maliciously set himself up as a saboteur it strikes me as a bit unfair to penalise the employer but let the individual go without penalty. Whereas a regulated individual would likely suffer a fine as well as loss of professional status.

I’m afraid I don’t know enough about working practices to know how effective oversight over this bloke would be.

On rights of Audience – see Legal Services Act 2007 – Section 12,13, 19 and Schedule 3 paragraph 1 – I would add that as with barristers, solicitors and CILEx there are differing levels of capability and competence with “paralegals” / “legal assistants” / “Solicitors Clerks”. The issue for clients and the Courts is to ensure that the unqualified person is suitability supervised and experienced, if this is so then having the unqualified person representing a client in court should not have a negative impact on the client – the real issue is ensuring that whoever represents a client is both competent and capable for the task in hand.

Given the rise in Litigants In Person I am personally a little more concerned with the increase in the unregulated type of suppliers offering services to litigants in person who do not have the same level of regulation and safeguards that are present with solicitors, CLIEx and the bar.

Whilst some of these unregulated providers give a good level of service to litigants in person this is, alas, not always the case. Its the lack of regulation that really troubles me as it seems anyone can set themselves up to offer “Legal advice and assistance” charging £50 an hour and upwards but without any legally qualified staff in place. This is fine is everything goes right but what recourse with people have if unregulated suppliers get it wrong?

Paul,
I think that part of the difficulty is that it is easy without training to suddenly find yourself in too deep, or not to even realise that you are missing things or to conduct yourself in a way which is inappropriate – none of which requires any malice, it is just a risk which is undeniably present. It is present in the case of junior lawyers – you cannot learn everything from a book after all – but the risk is higher for those without the academic and ethical grounding, and for those who don’t have access to a professional body (with their guidance notes, ethical helplines etc), a well resourced library (which requires of course the skills to conduct research properly and accurately) or colleagues who they can check and talk things through with (do not underestimate this – we all do this no matter how experienced we are).

These issues are less of a problem if an unqualified person is working in a firm, but ultimately you are still “on your own” at court and supervision by a firm does not have the kind of reach that would eliminate these risks. The risk with an unqualified person working solo is very high from the point of view of the consumer – the consumer doesn’t even know they are getting a poor service very often.

Let’s get back to the real world of the family courts…. Solicitors and barristers who tell their hapless parent clients to “go along with social services” (the very same people whose avowed intention is to take their children for forced adoption or permanent fostercare!)
Lawyers who tell their parent clients not to speak in court,not to oppose interim care orders,and even to wait outside the court and let their representatives speak for them (ie cut a deal with social services that loses them their children for good)
Any friend with a good education, if allowed to speak in court and fight would do better than these shyster charlatans……..

Oh Ian, same old stuff. The picture you paint is not one I recognise either from my own practice or those of any other lawyer I’ve encountered. Clearly some are weaker than others, some more fighty and others more conciliatory – and no doubt there are a small number of “rogue” lawyers who do as you suggest. It is wrong to panic parents into thinking they cannot trust their own laywers as you routinely do. Furthermore there are, sometimes, very good reasons for encouraging clients to cooperate with social services – and on occasions where I have successfully done so this has been a material factor in a child remaining with a parent or returning to their care in due course. Please don’t discourage parents from doing that – cooperation and engagement is not the same as rolling over. Sometimes parents make efforts on advice to cooperate and it all goes horribly wrong – but the reason more often for the negative outcome is because of defecits in their parenting that cannot be remedied – often partly because they cannot engage with the support that is offered to them to improve things. I will fight for my clients but I will also give them sound advice – the kinds of remarks you make make it more difficult for me to do a good job of that because they corrode the trust of my clients in the legal profession. I think that’s sad because we are trying to help the same people.
Lucy

Lucy,I am sure you are sincere in what you say but I get an unbelievable number of calls from distraught parents every single day (including Sundays despite my pleas to let my wife have me to herself one day a week…)
Nearly all those who phone or email me at the stage where an interim care order has just been granted tell me they were told not to speak by their own lawyers so that all the points in their favour were not only ignored but never made !. Nearly all were told to “go along with social services”,to “not oppose and not agree ” to the ico and in many cases were told to wait in a witness room while their barrister would put their case, when actually they just agreed to the ico !
Brendan Fleming is the only solicitor I have come across who advises parents to “fight every step of the way” for their children.When helping parents I start from the premise that everything the L.A say is true,and then ask if permanent removal (as requested by the LA) is justified and usually even then it is not.
Punishment without crime can never be justified. Crimes by parents desparate to keep their children are rare,and sometimes when crimes have been alleged but parents have been cleared in criminal courts the LA disregard the verdict and still send the children into forced adoption.
If it is “always the same old thing” Lucy,it is because the same terrible things keep happening every day to parents and children.Surely common sense should tell you that parents who go through months and sometimes years of gruelling assessments and court appearances trying to keep their children, must love and care for their children and should sometimes “win” but as you know quite well they rarely do !

Forced Adoption – I don’t really propose to rehearse arguments we have had before, but you are describing a parents’ experience of what has happened in court which, for various good reasons, may not represent what has actually happened – or may misinterpret / misunderstand the significance of certain things. Any person who is represented can expect their lawyer to do the talking for them – that is what they are for, to present the case better than the client can to maximise the chances of a favourable outcome. Some parents find it really difficult to contain themselves or to say helpful / appropriate things in court and do need to be advised that it is best if they don’t pipe up in a hearing – the lawyer acting will have been in private conference with the client and will have a good feel for their frank views and ability to contain their anger or frustration. An ill timed angry or abusive remark can really make a difference to the outcome – particularly on an interim removal hearing, and it is patently in a clients’ best interests on occasion to ensure they understand court process and expectations about when they should speak etc.
Equally, it is often the least worst option to not oppose something at an interim stage because an interim contest would be bound to fail and would risk making matters worse in the longer term.
There is no such thing as being “cleared” in criminal courts – you are either proved guilty or not – it is not equivalent to a finding of innocence.
You are right that parents do not often succeed in resisting public law orders once proceedings have been issued – but they do achieve it sometimes, and often with the assistance of a legal team that they have placed their trust in.

A BRIEF SUMMARY OF OUR AILING FAMILY COURT SYSTEM
1:- Lord Justice Thorpe said “There is nothing more serious than a removal hearing,because the parents are so prejudiced in proceedings thereafter.”

2:-“Lord Justice Wall (The former Senior family court judge) said that the determination of some social workers to place children in an “unsatisfactory care system” away from their families was “quite shocking”.

3:-In a separate case on which Sir Nicholas Wall also sat, Lord Justice Aikens described the actions of social workers in Devon as “more like Stalin’s Russia or Mao’s China than the West
4:-Lord NEUBERGER, president of the Supreme Court said that other than in exceptional circumstances judges should treat requests to hear cases in closed courts with ‘distaste and concern’. In a blow to ministers, Lord Neuberger said hearing evidence behind closed doors was ‘against the principle of justice’.
5: – Baroness Hale (the only lady judge in the UK supreme court)”Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.
(Baroness Hale of Richmond in B (Children), Re [2008] UKHL 35 (11 June

I find this post and its comments quite amusing, because what we have got here are a bunch of righteous lawyers passing judgement on some wishywashy guy. What’s forgotten (or rather blocked out) is that he is wishywashy about the whole thing precisely because he knows how unethical the system is, with its rank ranks of suited and verbalizing thugs. Here is a guy who shows that up with his question about ‘kids happiness’ – the very thing that is least on the mind of those suited thugs who go into court. So what we’ve got here is a rather trashy trashing of the new kind on the block, by those who snub idealism and are protective of the oh-so-ethical ‘professionalism’ of their trashy trade. How despicable can you be?